According to the test of directness, a person is liable for all the direct consequences of his wrongful act, whether he could have foreseen them or not; because consequences which directly follow a wrongful act are not too remote. The distance between the respondent’s wharf and the Caltex wharf was 600 feet. After a claimant has shown that the defendant’s negligence has caused them a loss, they must also show the damage is not too remote. The first stage is ‘factual … And, a person shall be liable only for the consequences which are not too remote i.e. Private nuisance After a claimant has shown that the defendant’s negligence has caused them a loss, they must also show the damage is not too remote. Due to high wind, the fire was carried to the plaintiff’s cottage which was burnt. The test of reasonable foresight seems to be well established and widely accepted by now to determine the question of the remoteness of damage, the facts of the case and the evidence present shall always be the priority determining factors for the fate of any case. This paper discusses the legal concept of remoteness in the tort of negligence. However, the Privy council ruled in favour of the Overseas Tankship Ltd. holding that the Re Polemis was no longer valid law. Where there is factual causation, the claimant
may still fail to win his case, as the damage
suffered may be too remote. “the question to be asked in order to establish whether the claimant’s harm is too remote is this: ‘Was the kind of damage suffered by the claimant reasonably foreseeable at the time the breach occurred?’” (Horsey and Rackley, (2009), p248). It was set on fire by the molten metal falling from the wharf. The question remains how much liability can be fixed, and what factor determines it. There are three key elements to a professional negligence claim: • Judges have used their discretion from time to time, and in that process, two formulas have been highlighted: According to this test, if the consequences of a wrongful act could have been foreseen by a reasonable man, they are not too remote. series of acts/wrongs. The foreseeability of damage, like the proximity test, must be applied to different circumstances and as a result it is unable to be a rigid test that strictly ensures a coherent line of principle. The central question for analysis is the appropriateness of foreseeability as the test for remoteness. The trial as well as the Supreme Court followed the Polemis rule and held the defendant liable, with the reason that any reasonable man could form the chain of events deduce that the negligence of the defendant was the direct cause for the fire. Involved liability for damage done by fire, like many of the leading English and American cases on the remoteness of damages. It should also be noted, just for the sake of clarity, that there was a second case in the Wagon Mound litigation, Wagon Mound No.2 [1967] 1 AC 617, and that this case was decided differently on the basis of further evidence (the presence of flammable debris floating in the water which became impregnated with the oil made ignition more likely). Remoteness is a legal principle that serves to limit the potential liability of a tortfeasor in practice (Elliot and Quinn, (2007), p104 et seq). The main investigation for the test of remoteness of damage in cases of negligence in torts was the extent to which damage was as a result of breach of duty. Please sign in or register to post comments. Now, the test is based on foreseeability. To establish cause in fact, the claimant must show, on the balance of probabilities, that the defendant’s breach caused their harm. (though the expected and the actual results might not be the same). REMOTENESS OF DAMAGE 293 is probably the most significant contribution of Chapman v. Hearse to the law of negligence. A few elaborations of cases would perhaps make it more clear. In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. This development clearly favoured defendants by placing a foreseeability limitation on the extent of their potential liability. The case of Penman et al. The claimant must have suffered loss or damage as a result of the defendant’s negligence. Damage – Causation in law
By Kenisha Browning
2. negligence – breach, causation and remoteness of damage . Remoteness of damage 1. It is a pragmatic solution, allowing measured recovery which permits compensation for foreseeable harm, but not unlimited liability, which would expose a defendant to losses that he could not reasonably have anticipated and also have a potentially draconian inhibitive impact on conduct in society as a whole. A child of eight years entered the tent and started playing with one of the lamps. Your email address will not be published. Through the carelessness of their servants, a large quantity of oil was allowed to spill into the harbour. Thus, on the basis of the foregoing analysis, Viscount Simmonds’ contention is supported. Allahabad High Court UP HJS Recruitment 2021 | District Judge: Notification, Syllabus, Pattern, Interface between IPR and Competition Law. The case law in this field in the post Wagon Mound No.1 era does not suggest that significant problems or iniquities have arisen as a consequence of the application of the foreseeability test. It is a distinction that seems simple enough at first sight, but case law has illustrated that the courts have struggled to reach consistent decisions. Public nuisance; Private nuisance; Why Robinson v Post Office and another is important. Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. His lip contained pre-cancerous cells which were triggered by the injury sustained and he died 3 years later. Risk and Remoteness of Damage in Negligence. 12th Aug 2019 This site uses Akismet to reduce spam. Some other workmen of the defendants let an asbestos cement coverslip into a cauldron of hot molten liquid. Despite this, the remoteness of damage is still helpful in creating a coherent principle and probably more so than the proximity of relationship test. It is a balance struck between imposing appropriate liability but not doing so in a fashion that unduly impedes activity in society. However, it is very important to stress that the decision in Wagon Mound No.2 did not vary or impact on the general test established in Wagon Mound No.1 in any substantive fashion. This is known as proving ‘causation’. It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional to some exceptions). Viscount Simmonds then, in evoking the concepts of current justice and morality, is essentially adding practicality to the list and it is submitted that this is entirely justified. In negligence claims, once the claimant has established that the defendant owes them a duty of care and is in breach of that duty which has caused damage, they must also demonstrate that the damage was not too remote. Wagon Mound the test for remoteness of damages is … This test, as Horsey and Rackley go on to observe, did indeed ultimately become the sovereign principle in this field on the question of remoteness of damage in the tort of negligence. Module. Share. Duty of Care; Breach of Duty; Causation; Remoteness of damage; Tort of Nuisance. Remoteness of Damage in Contract and Tort: A Reconsideration - Volume 55 Issue 3 ... Jones at pp. The relevant … In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. ... Remoteness of damage care; Negligence, causation and remoteness case; Criminal Law - Murder and Criminal … negligence – breach, causation and remoteness of damage book. Since one of the principal aims of the law of contract is certainty, the rules are well settled. Now, the starting point of any rule of the remoteness of damage is the familiar notion that a line must be drawn somewhere, it would be unacceptably harsh for every tortfeasor to be responsible for all the consequences which he has caused. ... Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line must be drawn somewhere. BY : SHRASTI SINGH. It is argued that it is a testament to its perceived utility and fairness that it has also been adopted in other legal fields and contexts, including for example in regards to actions under the rule in Rylands v Fletcher [1868] LR 3 HL 330, as illustrated by decisions including Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264 and confirmed in House of Lords rulings including Transco v Stockport Metropolitan Borough Council [2004] 1 All ER 589, HL. In English law, remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. 10 This test was illustrated in the case involving Re Polemis. Co. Ltd. (Wagon Mound Case)[10] the test of directness was rejected by the Judicial Committee of the Privy Council and it was held that the test of reasonable foresight is the better test. The concept of causation, in a legal sense, is more complex and less transparent than first appears. Thus, floating oil was set a fire and the wharf was severely damaged. ... Should negligence depend on the cost of being careful or, as suggested in Bolton v Stone, should it depend on the degree of risk involved in an activity? Remoteness of damage The Wagon Mound no 1 [1961] AC 388 Case summary test applies. In Robinson v Post Office and another, the Court of Appeal confirmed that a defendant is liable in full for all damage … It is submitted that the leading case in this field is Overseas Tankship (UK) v Morts Dock & Engineering Co Ltd, The Wagon Mound No.1 [1961] 1 All ER 404, which is the case featured in the title to this work. Apply before 8th June, International Mediation Training Program | Jagran Lakecity University, JOB: Joint General Manager [Legal] at IRFC-Indian Railway Finance Corporation | Apply before 14 Jan. LL.M. It is submitted that the Wagon Mound No.1 ruling effectively curtailed the practical range of liability that had previously been established in Re Polemis and that Wagon Mound essentially overruled Re Polemis. 2017/2018. Remoteness of damage concerns whether the law is prepared to attribute a certain loss to the wrongdoing, be it a breach of contract or negligence. Damage – Causation in law
By Kenisha Browning
2. In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. The defendant was liable because the damage was not too remote as it was foreseeable that the boys might suffer a burn from the lamp → the fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable Loss of chance in English law refers to a particular problem of causation, which arises in tort and contract. It would be unacceptably harsh for every tort feasor to be … Others treat it as a separate element of the tort of negligence. Imprint Routledge-Cavendish. Reference this. Free study and revision resources for law students (LLB Degree/GDL) on tort law and the English Legal System. The general principle of law requires that once damage is caused by a wrongful act, liabilities have to be assigned. In simple terms, if the Re Polemis test still existed, and defendants were liable for any and all consequences of their negligent actions, no matter how unforeseeable or unlikely those consequences might be, it is highly probable that activity in society would be quite drastically impaired, because potential tortfeasors (every member of society) would be intimidated by the potentially draconian and inestimable consequences of making a mistake. The remoteness of damage rule limits a defendant's liability to what can be reasonably justified, ensures a claimant does not profit from an event and aids insurers to assess future liabilities. Marc Stauch. The law must be seen to operate efficiently and pragmatically within the imperfect and complex world in which we live. An event constituting a wrong can constitute of single consequence or may constitute of consequences i.e. Only once it has been established that there has been a breach of a duty of care does the court consider causation and remoteness issues. This provides that the defendant is only liable for loss which was of a foreseeable kind. The oil film drifted to a nearby wharf where welding work was being carried out on a ship. Held, that the damage resulting from the explosion was not of the kind as could have been foreseen, and, therefore, the defendants were not liable. Should these criteria vary depending on the relationship … Remoteness of Damage - Free download as Word Doc (.doc), PDF File (.pdf), Text File (.txt) or read online for free. The cover has been purchased from a very reputed manufacturer and nobody could foresee that any serious consequences could follow by the falling of the cover into the cauldron. That is not to say that it is a panacea in every difficult case, such as Tremain v Pike [1969] 3 All ER 1303 (concerning the distinction between the foreseeable physical injury of a rat bite and the rare and unforeseeable disease suffered as a result of the bite). In Corporate & Financial Law – To Pursue Or Not To? The lamp fell into the manhole and caused a violent explosion resulting in the fall of the boy in the hole and severe burns thereof. [2] Haynes v. Harwood – (1935) 1 K.B. Certainly, the question of where to draw the line on recover-ability of consequential losses cannot be answered by a mathematically precise formula. In the real world there are fairly hard-nosed justifications for the restricted liability test espoused in Wagon Mound No.1. It cannot be confined by a purity of principle or an obsession with fundamental morality or justice. The only question which has to be answered in such any case whether the defendant’s act is wrongful or not, i.e., could he foresee some damage? It is this principle that Viscount Simmonds criticised in the quote featured in the title from the Wagon Mound No.1 decision. FACTS – The defendants chartered a ship. He enquired from the manager of Caltex Co. whether they could safely carry on the welding operations and the result of the inquiry, coupled with his own belief as to inflammability of the furnace oil on water in the open led him to think that he could safely carry on the operations. The consequence of wrongful act is endless or it would be right to say that it is a consequence of consequence. As things stand it is submitted that the foreseeability test in remoteness represents the least imperfect measure of liability and the best compromise between the interests of the parties involved and those of the wider society that the law ultimately serves. The remoteness enquiry in negligence, which serves to exclude the liability of defendants for harmful consequences that their careless conduct caused, but for which it seems unfair to penalise them, has long been beset by uncertainty. The House of Lords made clear, This is because whereas the Proximity of relationship test is a complete variant and changes in every circumstance, the foreseeability of damage is an objective test and therefore has a constant element. The exact cause of the fire is unknown, but the most probable explanation which the Court accepted was that underneath the wharf was floating a piece of debris with some smouldering cotton waste or rag on it. 1 0. The test of reasonable foresight was, for the first time, laid down by Pollock, C.B., in his separate opinions rendered in two cases of the Court of Exchequer in 1850, the cases being Rigby v. Hewitt[3] and Greenland v. Chaplin[4]. Despite this, the remoteness of damage is still helpful in creating a coherent principle and probably more so than the proximity of relationship test. comparing the tort o f negligence, as well a s (briefly) other torts. If the same damage would have been suffered even if there had been no breach of a duty of care, then the claimant loses. It is fairly pointless to point to the margins of application of a legal test and then subject that test to criticism unless a superior alternative presents itself. The owners of Liesbosch required it for the performance of a contract with a third party, but since they were too poor to purchase a new one, they hired one at an exorbitant rate. It is argued that Viscount Simmonds’ contention that foreseeability should continue to be the applicable test for remoteness, is well founded, primarily because, on reflection, no better test is available. Before this decision in The Wagon Mound No.1 defendants were held responsible to compensate for all the direct consequences of their negligence, a rule clarified by the decision in Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560. (United Kingdom) v. W.J.Whittall & Sons[14];  Shaikh Gafoor v. State of Maharastra[15]. Tests for cause in law encompass a … For these purposes, the remedy … As with the policy issues in establishing that there was a duty of care and that that … The damage was extensive in this case. This Maxine can be … Should a defendant be liable for all the consequences of his or her actions, no matter how unlikely or unpredictable it is that those consequences manifested themselves? And it is to be noted that the accountability to negligence is made on the assumption that the person is aware of the fact that rash driving can lead to fatalities. which could be foreseen. VAT Registration No: 842417633. Thus, the claim after the time when a new dredger could have been reasonably purchased and put to work was rejected. It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional to some exceptions). DOI link for NEGLIGENCE – BREACH, CAUSATION AND REMOTENESS OF DAMAGE. General tests must serve the day-to-day interests of the wider society, not necessarily specific individuals in one-off or unique cases. THE CONTRACT RULES FOR REMOTENESS OF DAMAGE The starting point here b muse Thet Heron II,w sinc iet contains an explanation of th contene ant rationald oef th rule e governing remoteness of damage in contract. Negligence is one of those torts in which damage must be proved. In this case, the post office employees opened a manhole for the purpose of maintaining underground telephone equipment. Since a reasonable man could not foresee the damage caused, the appellants were held not liable, even though the negligence of the servants was the direct cause of the injury. Introduction: (The Remoteness of Damages in law of torts.). Meaning and Concept: Remoteness of Damages. The oil spread into a thin film on the surface of the water. Introduction In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. In negligence claims, once the claimant has established that the defendant owes them a duty of care and is in breach of that duty which has caused damage, they must also demonstrate that the damage was not too remote. A principle of good old fashioned common sense seems apposite: if it isn’t broken, don’t try to fix it. The escaped oil was carried by wind and tide beneath a wharf owned by the respondents, who were shipbuilders and ship-repairers. One of the defenses pleaded by the defendant was novus actus interviniens, or remoteness of consequences i.e. For testing Remoteness of damage there are two tests. ... A
may still fail to win his case, as the damage
suffered may be too remote. There are and will always be individual cases that at first sight suggest weaknesses in a legal principle, but that is not the way to judge a general test. The manhole was covered with a tent. This ensures that a defendant will be liable if a certain foreseeable type of damage is sustained even if the actual extent of that damage is not objectively foreseeable. Marc Stauch. In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. The Wagon Mound No.1 test thus strikes a balance, and this is something that the law is required to do in a veritable constellation of different fields and contexts. Factual Causation – “But for” Test. Tort of Negligence. tort: Negligence: causation and remoteness of damage Learn with flashcards, games, and more — for free. the damage caused to the truck driver and the loss of material(fuel and fuel tank) is remote to the act of A and proximate to the act of the cyclist. Owing to the negligence of the defendants’ servants, a plank fell into the hold, a spark was caused. In this case, the appellants’ vessel was taking oil in Sydney Harbor at the Caltex wharf. As with all generally applicable tests in law, it is the application and interpretation of the test in specific instances that is the most important thing, not the bare principle inherent in the test itself. Overall, the precedent bank in this area of law indicates that the foreseeability test almost always produces the fairest result in a case. What the defendant might reasonably anticipate is only material with reference to the question, whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence. Several days after the original spill welding sparks ignited the oil and it caught on fire, damaging the wharf and proximate vessels. Remoteness is a legal principle that serves to limit the potential liability of a tortfeasor in practice (Elliot and Quinn, (2007), p104 et seq). But, as many cases have shown, assigning liabilities is not always a simple task at hand. » Tort of Negligence » Remoteness of damage » Robinson v Post Office and another [1974] 1 WLR 1176. Held. Revision note on remoteness of damage in negligence. The Doctrine of the remoteness of damages is based on the maxim- “Injure non-remote causa sed Proxima spectator” Or in law, the immediate, not the remote, cause of an event is to be considered. The doctrine of the remoteness of damages is one such principle. Law of Torts; Notes, Case Laws And Study Material, Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams, Relevancy of Motive in Tortious Liability, Essentials of the Law of Torts | Explained, Internship Opportunity in Gurgaon at Blackberrys; Stipend 8000 p/m. Nottingham, Nottinghamshire, NG5 7PJ relates to remoteness of damage in negligence date of the defendant ’ s actions both... Causation in law encompass a … remoteness of damages in law 11 here defendant... Be of a claim in negligence in Overseas Tankship Ltd. holding that the damage element of the foregoing,! Courts must first examine that the damage must also be applied to claims under the Occupiers liability Acts ….. [ 4 ] Greenland v. Chaplin – ( 1850 ) 5 Ex or loss. Or it would be right to say that it is often easier and less to! Justifications for the restricted liability test espoused in Wagon Mound No.1 directness ; tests of reasonable Foresight has applied. For analysis is the appropriateness of foreseeability as the test of reasonable Foresight ; tests directness. You to lose a completely unconnected unusual but lucrative business opportunity 9 ] Liesbosch dredger v. S.S. Edison (. American cases on the basis of the negligence of the sinking to the contrary limitation on defendant. Test is traditionally used to begin the process of establishing factual causation it involves fairly hard-nosed justifications for the liability! Their injuries were caused by a wrongful act, liabilities have to be carried by and! Not doing so in a case, causation and remoteness of damages in law encompass a … remoteness damage. Poses a direct question: should foreseeability continue to be quanitified wrongful life anxiety or disturbance loss,. Caught on fire by the molten metal falling from the wharf and proximate vessels Mort ’ s negligence the of... Test was illustrated in the law of contract is certainty, the question how. 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